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Baroness Barker: My Lords, like the noble Earl, Lord Howe, I can hear the sound of a brick wall when I see one.

I am not surprised by the Minister's response, but I believe that he is somewhat off the mark with his remarks about NICE because the requirements on providers to follow NICE guidelines are not as robust as we on these Benches would like them to be.

The Minister mentioned drugs that are sometimes referred to as "lifestyle" drugs. People at a local level are best placed to see medicine management and control throughout their practice and the area. One of the reasons why we advocated the approach in the amendment was because medicine management should not be done by a particular provision. Provision of one drug could lead to a decrease in demand for others.

We remain of a different view on the matter but, in view of the hour, I shall not press the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendments Nos. 395 and 396:

    Page 90, line 21, leave out "may" and insert "must"

On Question, amendments agreed to.

Earl Howe moved Amendment No. 397:

    Page 90, line 31, leave out "suspending or terminating" and insert "as to the suspension or termination of"

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The noble Earl said: My Lords, in Committee the Minister very helpfully explained the background to new Section 28V(4)(b) which provides for the suspension or termination of any duty under the GMS contract. He also set out the intended effect of this provision in relation to individual services, and I was grateful for that. He did not, however, settle the doubts that I still have about the drafting. The subsection states:

    "Regulations under subsection (2)(e) may . . . make provision suspending or terminating any duty under the contract to provide services of a prescribed description".

I do not think that that is quite what it should be saying if we take the construction of those words literally. The regulations, when they come, will not actually suspend or terminate a duty under the contract to provide services, it seems to me; they will allow individual GMS practices to opt out of particular duties, which is a different thing. Those who do not opt out will surely still have to provide the services in question. So I am concerned that this blanket provision may not be quite right.

I do not want to labour what is obviously a technical point. If the Minister can assure me that it has been looked at I will gladly withdraw the amendment. I beg to move.

Lord Warner: My Lords, I am pleased to tell the noble Earl that we have consulted parliamentary counsel and we believe his amendment is a suitable form of words. So I am very pleased to be able to accept his amendment. I would suggest that there is a new career opportunity opening up for him here.

Earl Howe: This is indeed a joyous day, my Lords. I thank the Minister for his trouble in taking away what by the standard of this Bill was a minor concern and for responding so positively.

On Question, amendment agreed to.

Lord Warner moved Amendment No. 398:

    Page 90, line 35, at end insert—

"(5A) Regulations under subsection (1) must make provision as to the right of patients to choose the persons from whom they are to receive services."

On Question, amendment agreed to.

Clause 173 [Arrangements under section 28C of the 1977 Act]:

Lord Warner moved Amendments Nos. 399 and 400:

    Page 93, leave out lines 1 to 8.

    Page 93, line 34, at end insert—

"( ) In that section, after subsection (3D) (as inserted by subsection (10) above) insert—
"(3E) The regulations must provide for the circumstances in which a person providing primary medical services under section 28C arrangements—
(a) must or may accept a person as a patient to whom such services are so provided;
(b) may decline to accept a person as such a patient;
(c) may terminate his responsibility for a patient.

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(3F) The regulations must make provision as to the right of patients to choose the persons from whom they are to receive services under section 28C arrangements.""

On Question, amendments agreed to.

Earl Howe moved Amendment No. 401:

    After Clause 177, insert the following new clause—

If the Secretary of State makes an order under section 11 of the 1977 Act setting up a Special Health Authority to assume functions relating to the provision of dental services under the 1977 Act as amended, the order shall not have effect unless a draft of the order has been laid before and approved by each House of Parliament."

The noble Earl said: My Lords, I realise that I shall be accused of sounding like a cracked record—on reflection, I had better withdraw the word cracked. However, I hope that the Minister will forgive me for returning to an issue that I believe we ought to look at again relating to the proposed abolition of the Dental Practice Board and its replacement with a special health authority.

The Minister provided us in Committee with a very helpful exposition of why the Government have decided to adopt this course. I was grateful to her for that. I now have a much clearer idea of the timetable for the transfer of the DPB's functions and of the transitional arrangements. I took the Minister's point that it would not be appropriate to have a debate in Parliament about the functions of the Dental Practice Board at the moment when the board was about to be abolished. What concerns Parliament more are the successor arrangements, some of which, as she explained, are likely to be put in place long before the actual abolition of the board. These changes are important; they are not straightforward, and they have to be got right.

I therefore think that the Government ought to reconsider the merits of the affirmative procedure, not as regards the DPB which we accept is destined to disappear, but as regards the successor body. Parliament ought to be guaranteed the ability to scrutinise the detail of what is being proposed for the SHA and to debate it. The other place has not done so. We have done so only in a cursory fashion, without disrespect to the Minister's helpful remarks last time.

So I put it to the Minister that there is a strong case for allowing Parliament to examine the transfer of functions, the interrelationship between the SHA and the PCTs and in general the key elements of the changeover that will determine its success. I hope that the Minister will be receptive to this revised suggestion of mine. I beg to move.

Baroness Andrews: My Lords, I am afraid that the moment of joy was very temporary and that we are back to the brick wall, but with some different arguments.

I shall not reiterate the exposition I gave in Committee except to return briefly to the bullet points. We said that the Dental Practice Board had outlived its functions as it is too restrictive. A new special health authority is necessary to confer additional flexibility

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and to take on additional NHS functions some of which in the future might not even relate to general dental services because of the terms of the primary legislation. If we kept the old Dental Practice Board, it would be increasingly difficult to match the capacity of the organisation to its appropriate functions and would not make best use of its staff.

Clause 177 therefore provides for the abolition of the DPB and for the creation of a special health authority under Section 11 of the 1977 Act by the Secretary of State and the Welsh Assembly as it will be a cross-border organisation. As an SHA it will be capable of undertaking functions in relation to the NHS conferred on it by directions of the Secretary of State or the Assembly. As the noble Earl said, it will have a very important role, not least in the transitional period, because the DPB has such a good reputation for paying dentists correctly and on time. The profession draws confidence from that. We are extremely intent on maintaining that confidence during the transitional period, during which time responsibility for pay will transfer to the PCTs and the SHA will become the payment agent, acting on their behalf.

The first thing I want to say is that we are very aware of the need for public consultation on that matter. One of the reasons we do not consider that the affirmative procedure is necessary is because we are discussing how best to achieve that proper transfer with all the relevant stakeholders. There will be full public consultation over the transfer. Indeed, Section 11 of the 1977 Act requires the Secretary of State, before he makes an order, to consult with such bodies that he may recognise as representing those who in his opinion are likely to be transferred or affected by transfers as a result of the order. That is a very serious undertaking because the transfer to local contracting will make it important not least to ensure that the correct charges have been calculated and collected. We are very keen that the consultation is serious and proper.

In addition to a payment function, the new special health authority will undertake monitoring and quality assurance in relation to the new primary dental services regime. That is a very significant and important enhancement of its current work. We shall consider such matters carefully. Under Section 11 of the 1977 Act, the assets, liabilities and staff—subject to consultation—of the DPB will be transferred during 2005 to the new SHA. Its successor special health authority will need to be established before the DPB is abolished.

The noble Earl wants to make the establishment order of the new SHA the subject of debate in both Houses. My second reason for being reluctant to accept the measure is that there is no precedent for special health authorities to be subject to affirmative order. Indeed, there is no requirement in the 1977 Act for any other special health authority to be subject to the affirmative procedure. To put it bleakly, there is no

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reason why this SHA should be treated any differently. I hope that with those assurances the noble Earl will be able to bear his disappointment.

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